U.S. Supreme Court expert Ian Millhiser has a fascinating post this morning at Think Progress. His conclusion: Trump administration lawyers may be inadvertently undermining their own arguments in this week’s big case out of Coloradoin which the Court will decide whether it’s okay to discriminate in the provision of public accommodations to LGBT customers.

Here’s Millhiser:

Nearly half-a-century ago, in a case called Newman v. Piggie Park, a racist restaurant owner claimed he could refuse to serve black customers because a ban on such discrimination “contravenes the will of God.” In a unanimous opinion, the justices treated this claim as little more than a bad joke. In a footnote, Piggie Park labeled the argument that a religious objection could overcome federal law’s ban on discrimination as “so patently frivolous that a denial of counsel fees to the petitioners would be manifestly inequitable.”

Masterpiece Cakeshop presents this same issue to the Supreme Court once again, this time with a gay couple playing the role of the disfavored minority. It also presents a closely related issue: whether a baker can refuse to serve a same-sex couple if he claims that serving them would violate his free speech rights.

As the lawyers for Jack Phillips, the baker at the heart of this case, claim in their brief, Phillips’ “custom cakes necessarily express ideas about marriage and the couple” and “declare an opinion…that the couple’s wedding ‘should be celebrated.’” So a law requiring Phillips not to discriminate against same-sex couples, the baker’s lawyers claim, would effectively force him to express a message that he does not agree with — that a union between two men or two women is worthy of celebration.

One danger inherent in Phillips’ argument, even if you agree that he personally should be allowed to defy anti-discrimination law, is that a victory for this one business owner could enable many others to engage in illegal discrimination. Though this particular case involves animus against a gay couple, the next case could enable discrimination against women, or against people of a certain faith, or even discrimination on the basis of race. Similarly, while this case involves a baker who claims to be an artist, future cases could expand a victory for Jack Phillips to other businesses, severely weakening many civil rights laws.

Yet even the Supreme Court’s conservative bloc has shown reluctance to legalize race discrimination. And the Trump administration’s legal team seems to understand they will have a tough time finding five votes on the bench if a victory for Jack Phillips would cut too much, too fast from America’s civil rights laws.

In an apparent effort to resolve this tension, the Trump administration proposes a perfectly sensible rule that courts could use to determine whether a particular vendor’s decision not to serve a particular client has First Amendment implications. A business owner like Phillips’ rights are implicated if a law creates a “risk of mistaken attribution” — that is, if the law could create the impression that the business owner is expressing a message, not the client who hired the business owner. The question of whether a law “creates an association with an unwanted message,” the Trump administration explains, “depends on a reasonable observer’s perception of the relevant expression.”

In other words, if a “reasonable observer” saw a LGBTQ couple walk into a store that sells cakes, and purchase the very product that business makes available to its customers, would that observer conclude the business sold a cake to this couple because it wanted to express a political message — or because it was simply a business that sells cakes to the public?

Asking this question, however, reveals that it is not especially helpful to Phillips. Think back to the last wedding you attended. When you saw the wedding cake, no matter how artistic that cake may be, did you think, “Ah, this cake must be here because the baker who made it personally approves of this particular union”? Or did you simply assume that the vendor sold the cake to the happy couple because that’s what he or she does for a living?

Moreover, as Yale law professor Robert Post writes, the case against Phillips is bolstered by the very fact that there’s already a state law that forbids Phillips from discriminating against same-sex couples. By stripping away Phillips’ choice whether to discriminate against certain clients, this law also eliminates any perception that he approves of the clients he is compelled to serve. Compliance with the law, Post writes, “conveys no message other than obedience to law.”

A “reasonable observer” who saw Mr. Phillips serve a same-sex couple would not necessarily assume that Phillips supports their relationship; Phillips may only be serving them because the law requires him to do so.

Of course, it remains to be seen whether a majority of the Supreme Court will apply the Trump administration’s rule — or if they will recognize that applying this rule would lead to Phillips losing his case.

As is so often the case, Masterpiece Cakeshop will almost certainly come down to Justice Anthony Kennedy, a conservative who has often supported civil rights claims by gay and lesbian plaintiffs, but who also tends to be more skeptical of such claims when the First Amendment is implicated.

One Comment

Tim Berton

The baker said that gay couples could buy anything else he had for sale so they could serve lots of his baked goods at a gay wedding reception and even thank him publicly for baking such tasty fare.

I don’t see how that is any better than him baking a cake for a gay wedding. I’ve never been to a wedding where the baker of the wedding cake was publicly acknowledged. They sometimes left their business cards to try and drum up more business but that was at the baker’s discretion.

A ruling in the baker’s favor could encourage lots of businesses to discriminate maybe even against Supreme Court justices whose opinions they did not like.